The Bill Cases.

Daily Telegraph (Napier), Issue 5896, 30 July 1890, Page 3

The Bill Cases.

PALMER V. BENNETT AND ROCH-

FORT

JUDGMENT FOX PLAINTIFF.

Mr Justice Connolly delivered tho following judgment in tho iibove case this morning : —

In this action three ground* of defence have been sot up to ilie cliiim of tho p'aintiil to recover from tho defendants, as executor* of William Fletcher, tho sum of £290 and interest, being the amount, of n promissory imtu endorsed by the waid Willirni) Fletcher, duo the, 13th day of July, 18S'.>, and dish'jm.n.d.

The fir.it tri-nmiii of defence, namely, that the endorsement of tin. , bill was not in the bund writing of tin: deceased "William Fletcher, was practically abandoned itfter evidence in proof of tho authenticity of tho eiirmiture hud beou iriven.

Tlic m;<jo:ul ground uf defence was that tin; (-aid endorsement wue prior to tho endorsement of the note by tho plaintiff, and that William Flttcher did not thereby incur any liability, iiuiMuuch as ho did not authorise tho plaintiif to endorxo it without

rt.eour^e

The facts as provfd were that ono Parker, on or about the 'Joth June, IKSIi, applied to the plaintiff for a loan of £200 : that the plaintirl agreed to lend it on the security, of a promissory note endorsed by Fletcher; that Parker brought to the phtintitt' a promissory noto ho endorsed and obtained the £2."j0 ; that four months afterwards the note was taken up by another similar one for £200 and payment of £i 0 cash ; and tlmt it was then renewed from time to time by similar promissory notes bearing the like endorsement;*.

Tho note mod on was given on the 10th January, ISrii l , and then bore only the un-dor.-ement of Fletcher: audit sa remained in tho plaintiff's cash box until after the death of Fletcher, which took place on the 14th April, IMS:). After the death of Fletcher Parker told the plnintiii' that tho note (which was not duo until the 13th July) would probably bo dishonored, and advised plaintiff to pay it into the bank for collection. Plaintiff did so, but it was brought again to him beuau.su he had only plaued his natuo below Fletcher's and not above it; therefore the note was not negotiable. He Mgned his name above that of Fletcher, adding the words " without recourse."

There is no pretence- for waving that the addition of thour words wan by express authority of Fletcher, nor was it contended ; but no case wiih cited which proved to me that .such authority was required. The endorsement by Fletcher was an endorsement in blank and was clearly intended and taken as a guarantee for ihe paymeut of the bill, without which guarantee Palmer would no' have lent Parker tho money; and Fletcher was in no way prejudiced by tho addition of the word.-i.

The third ground of defence was that the defendants hud not due notice of tho dishonor of the bill ; and as a matter of fact they never had express notice- of dishonor, so far ad the evidence Hbowe, until thia action was brought. But the plaintiff contends that there was no legal personal representative of Fletcher at the duo date o£ the promissory note but a document purporting to be the will of Fletcher had been lodged for probate in tho Supreme Court, wherein Parker (the maker of the note) was executor uud solis beneficiary and caveats had been lodged on tho part of tho beneficiaries under tlio will which has since been proved ; and that ho gave due notice of dishonor to Parker, and also to each of thr !»;;id beneficiaries.

'I ho of events was as follows :— ! Fktcher died 1-Jth A pi 11, 1680. On the | 18th April a notice oi uiouou for probate of tho will in which Parkor was .«010 executor and beneficiary was filed with the Uiual itfh"davits, and on the same day '■aveats wtiv )'.;dgi;d by the con and two d-nighterr of Fletcher, who with a grandsou would have been tho beneficiaries if tlu-ro hud been no will, and were «,' under V<n> will of whir-! tiu! dcfendfsntri ni'u C.V-jut..r,-s. O.<: th,; previous day, 1 Tib April, there appeared ji loeul in tho Daily Tyj.Khi'.'.yn, a n-j-.v.-papor public-hed it: K;.l)ier, io lhj t-ikot that Fletcher's re; i-tionsducliir-.d u> rec.jgiiitj's unv will but that to Jiunuttt anil Hxchfurl for thu benefit .>f children ; ami that thu will r.rl up by Parker was a .•nil'pHsa to t'.'cm. f/!t the 11th July a bum-m-jiiii wiw tak..-u out by Parker to I ho caviatoM to .-how cauao why probate should not by granted of thfi will propounded by him. On the 13th July the promissory note v.-jis dishonored. The l.'ith was a Saturday ; and on tin: l;jththe plaii.'.iU' gave i,«>(ice of (iiihoiwir I. \.h\; rhrwo children of Flcti.-h'T, iv the grands'iii, and to Parki.r. On tin.: 2-.i",li of tin.' .saiiii: mouth ati order was made fur tho proof t.y trial of the wills disputed. Statement of claim was served 2hd August, Mati'iueiit of defence aud countor-clainri f>;h 'Dm action was tried on Lhe Uud and :jrd October, when Parker ultimately withdrew his dufenco and submitted to a dec-co u.-.tablMii-ig t| lt , vviii of which lije ik'fend'iiits are (■■«.tcutors. The Hills ~r Kxchany,. Act, ISs:;, y,-.-.ti- .Ti -1!), sub-5...(;1i0u '.). ..haur,, that where the | ,lr.iwerorilid.ir,eri- ,:.,:,,1, and the party i ;:-:v.!itr ii'Hici !;now-< i(.. tli.i m.tic,. u\\M in,: ;:'•'■' ,oil vepi. ; M..nl:;!iv., it m:-u t!,... i( , be, ai.d -.v:th r)m t .x.-:-ci>, ; ~)■ ri;a^j; ,- ;i t.i,. ciii: ,Mm: lie can b.j (ounl In the pi-.-.-eut ci-: if li.,- nlaii.tiii , ku.-.v ;n: The ?!■,«,■„,!;■::. wj.ir.u l.al i,o, ;11 ta k ( -u j up Iμ Mid l-~>rh tin;;.' tut vvoulii }iay... 1,..-tni.'d I \, .',,■, i.hat fins s-iii and il'iiiLditut-.s isiti-iiilt-il jii-.ji.ed Li Aujv; oau.-" '.vhy thai. -,-. [\[ -houl i ■ :i' t :■■■ pr-)V,.d. Al-o rrmu the iif'.w^p;,.^,.^ j.ara-niph. he Ki'-ght have ;. u , )p ,,V.j 1 I ti:av. liiere .vrij another wiij, or all-.- C i I j .;.-;:!.-.r ■viLi.:i l r!,. l i l .: i .- :l .h::. i w-.-r OeX , ! , l ,i: r , Bui ..-.-,.:■,1. ■: U: V,, h J ~ly i:- r,-,:,,,:,, ~.1 - t;iu lie ■'•■■'■[ '>;• !' p:iwgr.n)h h., \ui\ 3 liccu Iv,' l -- niyi.'tiij previoiialy, it xiut

appear to me that he was bound to enquire whether it was accurate or not; and if he had made any such enquiry he would have found that neither the defendants nor the relatives had during that two months taken any steps to establish the will referred to in the newspaper. He, therefore, in my opinion, did uee reasonable diligence when he gave notice ot dishonor to the executor named in the will theu before the Court, and also to all the persons who would be beneficiaries if that will should be set aside, and there was no other. It was further contended for the defendants that even if the plaintiff was not bound to give them notice at tho time, when their status as executors had not been established, yet that ho should have done so immediately after the 2nd October. No authority was cited for this ; and in my opinion no good end could have been served by then giving the defendants formal notice of that which they must have known long previously through tho relations of the

deceased. Judgment for the plaintiff for £200, and interest at eight per centum per annum from the 13th day of July, 18S9, with costs on middle scnlo. Execution to be stayed pending result of an application in administration suit. Mr Cornford : I will ask for stay of execution pending the decree in tho administration suit. Mr Carlifo : With leave to apply at any time.

Mr Cornford: Pending application in the administration suit. His I'.onor : So as not to give Palmer a preferential claim. There may be a large amount of equally good debts, and the estate would not bt. able to pay them. Mr Cornford : That may be so. Mr Carlile : I may be served in a day or two with a summons to apply. His Honor: Execution to be stayed pending an application in the administration suit.